employer expressed opinion that rules of a union contract or union administration of contract would forbid certain privileges, held that employer was not aiming to withdraw privileges in retaliation if union won election
How later courts described this case
- employer expressed opinion that rules of a union contract or union administration of contract would forbid certain privileges, held that employer was not aiming to withdraw privileges in retaliation if union won election
- tracing case law background--including Virginia Electric --to the enactment of Sec. 8(c) of the Taft-Hartley Act (1947)
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge
(dissenting):
The majority opinion demonstrates once more the inescapable truth that United States Circuit Judges safely ensconced in their chambers do not feel threatened by what employers tell their employees. An employer can dress up his threats in the language of prediction (“You will lose your job” rather than “I will fire you”) and fool judges. He doesn’t fool his employees; they know perfectly clearly what he means.
Virginia Electric & Power authorized employers to announce their opposition to unions; it did not legalize threatening language. And Section 8(c) expressly excepts threats.
The error into which the majority falls is to believe that one can identify threatening language regardless of the circumstances in which the language is used and regardless of the ears to which it is directed. A dictionary definition will suffice because it makes no difference whether the words are addressed to a judge or to a machine hand, they must mean the same thing.
It is astonishing to find that the ears of employees are so exquisitely attuned to every nuance of meaning in the employer’s letters and speeches, but that when it comes to the union’s representations these same employees are “ordinary working people unversed in the ‘witty *930 diversities’ of labor law,” NLRB v. S. E. Nichols Co., 380 F.2d 438, 442 (2d Cir. 1967), so dull and stupid that the union can easily pull the wool over their eyes. Employees who have not the slightest difficulty in distinguishing between a “prediction” and a “threat”, are unable to read union authorization cards with even that degree of understanding which human beings ordinarily exercise. Surely enforcement of the Board’s orders has not become a game of “Heads I win, tails you lose.”
The extent to which the majority will go in defending the employer’s rights is indicated by their treatment of the employer’s threats to discontinue making “special personal arrangement[s]” and granting privileges “such as time off when your children [are] sick, weddings, for haircuts, a school prom, emergencies at home, and to catch up on studies.” These “fears” (of the employer!) may have been “unwarranted” says the majority, but “they were not shown” to be unreasonable. If it is not obvious on its face that no employee would believe that the union would interfere with his taking time off for a haircut, and that the employees undoubtedly (and correctly) understood that it was the employer who was going to withdraw these privileges, then certainly such a matter ought to be left to the Board’s expertise, without requiring a “showing” that the Board was right.
In the amusing pursuit of second-guessing the Board as to the intent with which each of the employees signed a union authorization card, my brothers find that the cards of Carbone and Zielnicki should not be counted toward a union majority. There is nothing whatever in the evidence as to Carbone which would justify the conclusion that she was misled into “the belief that the union would not become [her] representative unless it won an election.” The testimony as to Carbone’s signing is as follows:
“Trial Examiner: Whatever conversations you engaged with them about signing the card. Now whatever you recall.
A. When they came to the house they told me they were going to try to get the union into the market and they claimed if we have a union we would have our seniority rights if we left the place and went back. They claimed hospitalization and retirement plans and they asked me if I wanted to sign a card and I said yes.
Q. Was there anything said about the right to vote ?
******
A. Yes.
Q. What did they say? A. They said if they got enough people they would have a vote and the union in.
Q. Do you mean election, did they mention the word election ?
******
A. I don’t remember.
Q. Was there anything further said beside what you told us? A. No.”
It seems to me to be obvious from the testimony that Carbone signed because she wanted improved conditions, not because she wanted an election. That there could be an election was neither untrue nor misleading.
As to Zielnicki there was some talk about an election at the time he signed his authorization card, but what was said did not, as I see it, amount to a misrepresentation. Moreover the signature was sought by a fellow-employee rather than by a union representative. Finally I cannot understand why my brothers think it of no moment that Zielnicki signed the card before the so-called misrepresentations were made. Surely their whole argument must rest on the ground that the card was signed as a result of the misrepresentation.
This is one more case in which an employer is allowed to succeed by unfair labor practices in depriving his employees of the right to union representa *931 tion. By such decisions the courts nullify the beneficent purposes for which Congress adopted the National Labor Relations Act.